Segovia v. Bristol-Meyers Squibb Co.

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS BRISTOL-MYERS SQUIBB COMPANY AND PFIZER INC.’S MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT

DERRICK K. WATSON JUDGE

INTRODUCTION

Plaintiffs allege that Thomas Segovia died as a result of taking Eliquis, an anti-coagulant developed by Defendants Bristol-Myers Squibb Company (“BMS”) and Pfizer Inc. Because the courts of Hawaii have not interpreted the Restatement (Second) of Torts § 402A to provide blanket immunity to all prescription drug manufacturers in the expansive manner urged by Defendants, Defendants’ motion to dismiss Plaintiffs’ strict liability design defect claim is DENIED. Defendants’ motion is GRANTED, however, with respect to Plaintiffs’ fraud allegations, which fail to provide the specificity required by Federal Rule of Civil Procedure 9(b). Plaintiffs are GRANTED LEAVE TO AMEND these assertions by May 13, 2016.

BACKGROUND

BMS is the holder of approved New Drug Applications (“NDA”) for Eliquis, an oral anticoagulant or blood thinner. Complaint ¶ 15. In 2012, BMS and Pfizer received Food and Drug Administration (“FDA”) approval to market Eliquis for multiple uses, including for atrial fibrillation. Complaint ¶¶ 21-23.

In late 2013, Segovia’s medical providers discontinued the Coumadin that he had been using to address atrial fibrillation in favor of Eliquis. On December 20, 2013, Segovia suffered a severe hemorrhagic stroke from which he ultimately succumbed on July 27, 2014. Complaint ¶¶ 6, 9-10. Plaintiffs attribute Segovia’s death to Eliquis. Complaint ¶¶ 41-45.

According to Plaintiffs, “Defendants negligently and fraudulently represented to the medical and healthcare community, including Decedent’s prescribing doctor, the [FDA], [Segovia], and the public in general, that Eliquis had been tested and was found to be safe and effective for its indicated uses.” Complaint ¶ 3. Plaintiffs contend that when Defendants designed, marketed, sold, and distributed Eliquis, they “concealed their knowledge of Eliquis’ defects from [Segovia], the FDA, the public in general and the medical community, including [Segovia]’s prescribing doctor.” Complaint ¶ 4.

The First Amended Complaint alleges three counts: (1) “strict liability in tort, ” (Count I); (2) “manufacturing and design defect, ” (Count II); and (3) “negligence and gross negligence” (Count III). Plaintiffs seek damages for loss of consortium, emotional distress, loss of enjoyment of life, and wrongful death, and in their prayer for relief, request compensatory and punitive damages. The instant motion seeks dismissal of all claims, except those based on Defendants’ alleged failure to warn.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss for failure to state a claim upon which relief can be granted. Pursuant to Ashcroft v. Iqbal, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 555 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rather, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Factual allegations that only permit the court to infer “the mere possibility of misconduct” do not constitute a short and plain statement of the claim showing that the pleader is entitled to relief as required by Rule 8(a)(2). Id. at 679.

DISCUSSION

I. The Motion Is Denied As Moot As To The Manufacturing Defect Claims

Plaintiffs concede that they are not pursuing a manufacturing defect claim under either a strict liability or negligence theory. See Mem. in Opp. at 4. Although they acknowledge that Count II is entitled, &ldquo;Manufacturing and Design Defect, &rdquo; they clarify that the manufacturing defect label was inadvertent and that their claims &ldquo;are based on design defect and failure to warn theories, not on any defect particular to the Eliquis that Segovia took or that those drugs were different from the manufacturer&rsquo;s intended result.&rdquo; Id. Accordingly, because Plaintiffs have ...

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